CHAMPAGNE v SIDORSKY, 2018 ABCA 394
COSTIGAN, SLATTER AND O'FERRALL JJA
10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award
The Appeal Panel addressed a number of issues in this Appeal including a ruling by the Case Management Judge to award Costs to the Respondent, Sidorsky, following an Application by the Appellants, the Champagnes, to amend their Statement of Claim. The Court awarded Costs to the Respondent notwithstanding the fact that the request to amend the claim was allowed. The Court ruled that the need to amend the claim arose because one of the Appellants had drafted the initial Statement of Claim himself without using counsel, and further, the other unrelated relief sought by the Appellants in the Application regarding restrictive covenants was denied.
The Panel described the “overlapping” principles engaged on the issue of Costs. Successful parties are presumptively entitled to Costs pursuant to Rule 10.29 and special reasons are generally required to deny a successful party Costs while very special reasons are generally required to make a successful party actually pay Costs. Furthermore, a party can be denied “wasted” Costs, or Costs arising as a result of a party’s own carelessness or misconduct pursuant to Rule 10.33(2). This is manifest in Rule 3.66 which states that the Costs associated with amending a pleading should be borne by the amending party except in instances where the amendment is contested, in which case Costs are in the discretion of the Court. Finally, Costs should not provide a complete indemnity.
The Appeal Panel ruled that the Appellants would likely not have been entitled to Costs if the Application had simply dealt with the request to amend the Statement of Claim. Rule 3.66 would have operated to saddle the Appellants with the Costs of the Amendment Application because it resulted from the Appellants’ own carelessness. However, the fact that the Appellant had asked for other relief besides the amendments left it open to the Case Management Judge to assess Costs and award Costs to the Respondent. This was not unreasonable and was within the Case Management Judge’s discretion. The Appeal was dismissed.View CanLII Details